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Stephanie’s Fresh Perspective

The Department of Justice has had several high-profile incidents in the past few weeks calling into question the integrity of its prosecutors – specifically the aftermath of the Ted Stevens trial, during which prosecutors failed to disclose exculpatory evidence, and the Shaygan trial in Miami, during which prosecutors and agents secretly taped the defense attorney’s conversations with his client. These incidents have caused some to question whether there is a systemic problem within DOJ causing prosecutors to ignore some of the most basic principles guiding the fair pursuit of justice.

I think the answer is no. In my experience on both sides of the playing field, I have seen several examples of attorneys, for whom I have immense respect, who have come quite close to or crossed lines on occasion, either in the zealous representation of a client or in prosecuting a defendant who appears unquestionably guilty of serious crimes. Some otherwise excellent attorneys become so committed to their cause that the temptation to take ethical shortcuts prevails over logical application of the rules. It is the nature of legal practice that attorneys have to make regular decisions weighing their client’s interest and their duties to the court and the system of justice. Many of those decisions are very close calls.

Occasionally, however, those decisions are not close calls. The most fundamental rules of criminal prosecution require the disclosure of exculpatory evidence and prohibit listening to conversations between a lawyer and a client without authorization. It appears that those federal prosecutors, who otherwise had excellent reputations and lengthy careers with DOJ, were caught up in the pursuit of what they believed to be valid and important criminal prosecutions, and failed to consider their responsibilities to the court and to society at large.

There is no reason to believe that extremely bad decisions made by a few prosecutors reflect on the entire Department of Justice. Federal prosecutors make countless decisions, good and bad, every day. Instead, the circumstances in the Stevens and Shaygan cases should remind all criminal attorneys, whether prosecuting or defending a case, to be mindful of their opponent’s ethical obligations and to keep close watch. Even fair, experienced, and respected attorneys can make very bad choices in a given case, and it is important that the opposing attorney vigorously defend his or her client’s right to fair and equitable process.